1612019 3:14 pm by susan l. carlson clerk no. 96821-7 in ... · filed supreme court state of...
TRANSCRIPT
FILED SUPREME COURT
STATE OF WASHINGTON 4/1612019 3:14 PM
BY SUSAN L. CARLSON CLERK
NO. 96821-7
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
THE JUDGES OF THE BENTON AND FRANKLIN COUNTIES SUPERIOR COURT: Judge Joe Burrowes, Judge Alex Ekstrom, Judge Cameron Mitchell, Judge Carrie Runge, Judge Jacqueline Shea-Brown, Judge Bruce Spanner and Judge Sam Swanberg,
Respondents,
vs.
MICHAEL J. KILLIAN, 'FRANKLIN COUNTY CLERK AND CLERK OF THE SUPERIOR COURT,
Appellant.
CORRECTED BRIEF OF APPELLANT
SHAWN P. SANT, WSBA No. 35535 Franklin County Prosecuting Attorney
PAMELA B. LOGINSKY, WSBA No. 18096 Special Deputy Prosecuting Attorney 206 10th Ave. SE Olympia, WA 98501 Phone: (360) 753-2175 E-mail: [email protected]
TABLE OF CONTENTS
I. INTRODUCTION ......................................... I
II. ASSIGNMENTS OF ERROR ................................ 3
III. STATEMENT OF ISSUES ................................. 3
IV. STATEMENT OF CASE .................................. 6
A. Historical Background ............................... 6
B. Franklin County .................................... 17
V. ARGUMENT ........................................... 27
A. The Separately Elected County Clerk is Solely Responsible for the Maintenance of Court Records Once They are Filed .............................................. 27
1. LGR 3 Conflicts with Both Statutes and Court Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2. LGR 3 Is a Usurpation by the Judicial Branch of Duties Vested in the Executive Branch Office of the County Clerk ............................. 29
B. Judges Cannot Compel Public Funds Through A Court Rule When the Rule is not Constitutionally Mandated and the Judges Can Perform Their Duties Without the Rule .... 33
C. The Writ of Mandamus Was Improperly Granted ...... 36
1. The Writ of Mandamus Improperly Compels Clerk Killian to Exercise His Discretion in a Particular Manner ................................. 37
2. The Writ of Mandamus is Unenforceable Due to Lack of Funding ............................... 38
V. CONCLUSION .......................................... 40
i
TABLE OF AUTHORITIES
CASES
Amalgamated Transitv. State, 142 Wn.2d 183, 11 P .3d 762 (2000) .......................................... 30
Aripa v. Department of Social &Health Servs., 91 Wn.2d 135, 588 P.2d 185 (1978), overruled on other grounds by State v. WWJ Corp., 138 Wn.2d 595,980 P.2d 1257 (1999) ........................... 37, 38
Ashley v. Superior Court, 82 Wn.2d 188, 509 P.2d 751 (1973), modified, 83 Wn.2d 630,521 P.2d 711 (1974) ............................................. 38
Auburn v. Brooke, 119 Wn.2d 623, 836 P.2d 212 (1992) ................................................. 2
Bloomer v. Todd, 3 Wash. Terr. 599, 19 P. 135 (1888) ............... 9
Britannia Holdings Ltd. v. Greer, 127 Wn. App. 926, 113 P .3d 1041 (2005), review denied, l 56 Wn.2d 1032 (2006) .......................................... 39
Clark Cty. Sheriff v. Dep't of Soc. & Health S ervs., 95 Wn.2d 445,626 P.2d 6 (1981) .......................... 37
Cmty. Telecable of Seattle, Inc. v. City of Seattle, Dep't of Exec. Admin., 164 Wn.2d 35, 186 P.3d 1032 (2008) ................................................. 3
Committee for Marion County Bar Ass 'n v. County of Marion, 123 N.E.2d 521 (Ohio 1954) ................... 34
Crane v. Hirsh/elder, 17 Cal. 582,585 (1861) ................... 7, 31
Denny v. Holloway, 17 Wash. 487, 49 P. 1073 (1897) ................................................. 11, 31
Eugster v. City of Spokane, 118 Wn. App. 383, 76 P.3d 741 (2003) .......................................... 36
Freedom Foundation v. Gregoire, 178 Wn.2d 686, 310 P .3d 1252 (2013) .................................... 30
ii
Guillen v. Pierce County, 144 Wn.2d 696, 729, 31 P.3d 628 (2001), rev'd on other grounds by Pierce County v. Guillen, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003) ............................. 27
Harbor Enters., Inc. v. Gudjonsson, 116 Wn.2d 283, 803 P.2d 798 (1991) ................................... 2, 28
Harlandv. Territory, 3 Wash. Terr. 131, 13 P. 453 (1887) ............ 9
Harper v. Department of Corrections, 192 Wn.2d 328,429 P.3d 1071 (2018) .................................... 18
Hillis v. Department of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997) ...................................... 38, 39
Houston v. Williams, 13 Cal. 24 (1859) ........................ 7, 31
Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884) ......................................... 1
In re Postsentence Review of Leach, 161 Wn.2d 180, 163 P.3d 782 (2007) ..................................... 28
In re Recall of Riddle, 189 Wn.2d 565, 403 P.3d 849 (2017) ............................................ 16
In re Salary of Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976) ...................................... 34, 36
Lewis v. Seattle, 5 Wash. 741, 32 P. 794 (1893) ................... 31
Matter of Deming, l 08 Wn.2d 82, 736 P .2d 639 (1987) ................................................. 1
Maynard v. Hill, 2 Wash. Terr. 321, 5 P. 717 (1884) ................ 9
Maynard v. Valentine, 2 Wash. Terr. 3, 3 P. 195 (1880) .............. 9
Millay v. Cam, 135 Wn.2d 193,955 P.2d 791 (1998) .................................................... 27
Moore v. Snohomish County, 112 Wn.2d 915, 774 P.2d 1218 (1989) ........................................ 33
Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010) ......................................... 36
iii
SEIU Healthcare 77 5NW v. Gregoire, 168 Wn.2d 593,229 P.3d 774 (2010) ........... , ................... 36
Smiley v. Smiley, 99 Wash. 577, 169 P. 962 (1918) .................................................... 39
State ex rel. Banks v. Drummond, 187 Wn.2d 157, 385 P.3d 769 (2016) ....................................... 4, 32
State ex rel. Clark v. City of Seattle, 13 7 Wash. 455,242 P. 966 (1926) ....................................... 36
State ex rel. Farmer v. Austin, 186 Wash. 577, 59 P.2d 379 (1936) ........................................ ,. 38
State ex rel. Gordon v. Superior Court of Jefferson County, 3 Wash. 702, 29 P. 204 (1892) ....................... 12, 31
State ex rel. Hawes v. Brewer, 39 Wash. 65, 80 P. 1001(1905) ........................................... 39
State ex rel. Johnston v. Melton, 192 Wash. 379, 73 P.2d 1334 (1937) ......................................... 32
State v. Chavez, 111 Wn.2d 548, 761 P.2d 607 (1988) ..................................................... 2
State v. Rice, 174 Wn.2d 884, 279 P .3d 849 (2012) .................................................... 32
State v. Taylor, 97 Wn.2d 724,649 P.2d 633 (1982) .................................................... 28
Vangor v. Munro, 115 Wn.2d 536, 798 P.2d 1151 (1990) ..................... , ........... , .............. 37
Zylstra v. Piva, 85 Wn.2d 743,539 P.2d 823 (1975) ............. , ...................................... 29
CONSTITUTIONS
California Constitution article VI (1879) ......................... 10
California Constitution article VI, section 14 (1879) ................ 7
California Constitution article VI, section 7 (1849) ................. 7
California Constitution article XI, section 5 (1879) ................. 8
IV
United States Constitution Art. II, sec. 2 ......................... 30
Washington Constitution article I, section 1 .................... 29, 30
Washington Constitution article II, section 4 ...................... 30
Washington Constitution article II, section 5 ...................... 30
Washington Constitution article II, section 6 ...................... 30
Washington Constitution article II, section 7 ...................... 30
Washington Constitution article III, section I ..................... 30
Washington Constitution article III, section 2 ..................... 30
Washington Constitution article III, section 25 ................. 30, 31
Washington Constitution article III, section 3 ..................... 30
Washington Constitution article IV ............................. 10
Washington Constitution article IV, section 17 ................. 30, 31
Washington Constitution article IV, section 22 .................... 11
Washington Constitution article IV, section 26 ................. 11, 31
Washington Constitution article IV, section 3 ..................... 30
Washington Constitution article IV, section 5 .................. 30, 31
Washington Constitution article VI, section 24 ..................... 2
Washington Constitution article VIII, section 4 ................. 33, 38
Washington Constitution article XI, section 14 .................... 33
Washington Constitution article XI, section 4 ..................... 30
Washington Constitution article XI, section 5 ............. 3, 11, 30-32
Washington Constitution article XXVII, section 2 .................. 12
V
STATUTES
Cal. Penal Code§§ 1047, 1207 (1872) ............................ 8
Cal. Political Code§§ 4204-05 (1872) ............................ 8
Cal. Stats. 1850, ch. 110, § 7, p. 762 ............................. 7
Cal. Stats. 1851, ch. 1, § 128, p. 29 .............................. 7
Cal. Stats. 1863, ch. 200, § 1, p. 260 ............................. 7
Chapter 36.40 RCW ......................................... 33
Chapter 40.14 RCW ......................................... 14
Code of 1881 § 305 .......................................... 13
Code of 1881 § 307 .......................................... 13
Codeofl881 § 309 .......................................... 13
Code of 1881 § 430 ......................................... 12
Code of 1881 § 2109 ......................................... 13
Code of 1881 § 2113 .......................................... 9
Code of 1881, § 2123 ........................................ 8
Codeofl881§2179 ........................................ 13
Code of 1881 § 2181 ........................................ 12
Codeofl881 §2356 ......................................... 12
Laws of 1854, p. 448-49 ....................................... 8
Laws of 1854, pg. 366, sec. 4 ................................... 8
Laws of 1891 ch. 57, sec. 3(7) ................................. 12
Laws of 1891, ch. 57, sec. 3 ................................... 12
Laws of 1891, ch. 57,sec. 3(9) ................................. 12
Laws of 1917, ch. 156, sec. 2 .................................. 13
Laws of 1923, ch. 130, sec. 1 .................................. 13
vi
Laws of 1947, ch. 277, sec. 1 .................................. 14
Laws of 1957, ch. 201 ........................................ 14
Laws of 1957, ch. 201, sec. 1 .................................. 14
Laws of 1957, ch. 201, sec. 2 .................................. 14
Laws of 1957, ch. '201, sec. 3 .................................. 14
Laws of 1957, ch. 246 ........................................ 14
Laws of 1957, ch. 246, sec. 8 .................................. 14
Laws of 1971, ch. 29, sec. 1(1) ................................ 14
Laws of 1973, ch. 14, sec. (1)(1) ............................... 14
Lawsofl981,ch. 277,sec.10 ................................. 15
Laws of 1981, ch. 277, sec. 1(10) ............................... 15
Laws of 1981, ch. 277, sec. 1(4) ............................... 15
Laws of 1989, ch. 226, sec. 1 .................................. 15
RCW 2.04.210 .............................................. 2
RCW 2.08.230 .............................................. 2
RCW 2.32.050 ............................................. 12
RCW 2.32.050(4) ........................................ 15, 37
RCW 2.32.050(9) ........................................ 12, 15
RCW 2.40.030 ............................................. 13
RCW 36.23.030 ....................................... 4, 13, 34
RCW 36.23.030(4) .......................................... 13
RCW 36.23.040 ................................ 17, 27, 29, 33, 37
RCW 36.23.065 ......................... 3, 5, 15, 26, 27, 29, 35, 37
RCW 36.40.080 ............................................ 17
RCW 36.40. 130 ...................................... 17, 34, 38
vii
RCW 4.64.030-.050 ......................................... 13
RCW 40.14.080 ............................................ 14
RCW 7.16.160 ............................................. 36
RCW 7.16.170 ............................................. 36
RCW 7.21.030(2) ........................................... 39
Remington Revised Statutes § 1427 ............................. 13
Remington Revised Statutes§ 1442 ............................. 13
Remington Revised Statutes§ 75 ............................... 13
Washington Territory Organic Act, section 9 ....................... 8
RULES AND REGULATIONS
Commentary to GR 29(t) ..................................... 29
CR 83 ..................................................... 2
GR 29(t) ................................................ 4, 28
GR 7 ...................................................... 2
GR7(b) .................................................... 2
LGR 3 ............................ 1-3, 5, 21, 25, 27-29, 33, 35, 36
LGR 3(a) ................................................... 5
LGR 3(c) ................................................ 5, 29
viii
OTHER AUTHORITIES
1 Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (8th ed. 1927) ................. 2
2A C. Dallas Sands, Statutes and Statutory Construction§ 47.38 (4th ed. 1973) ............................. 28
AGO 2001 No. 6 ............................................ 39
Beverly Rosenow, The Journal of the Washington State Constitutional Convention 1889 (1962) ..................... 10
Charles H. Sheldon, A Century of Judging: A Political History of the Washington Supreme Court (1988) .............................................. 8, 9
Charles M. Gates, Foreword to The Journal of the Washington State Constitutional Convention 1889 (Beverly Paulik Rosenow ed., 1962) ......................... 9
Office of the Secretary of State, Washington State Archives, County Clerks and Superior Court Records Retention Schedule Version 7.0 (June 26, 2014) .......................................... 15, 37
Robert Utter and Hugh D. Spitzer, The Washington State Constitution: A Reference Guide (2002) ...................... 9
Seattle Times, July 19, 1989, p.1, cols. 2-6, reproduced in Washington State Constitutional Convention 1889: Contemporary Newspaper Articles at 2-39 to 2-44 (William S. Hein & Co., 1999) .................... 10
Sir William Blackstone, Commentaries on the Laws of England, Book 3, Chapter 25 Of Proceedings, in the Nature of Appeals (1765-1769) (Longang Institute Vers. 2005) ........................................... 6
Tacoma Daily Ledger, July 20, 1889, p.8, cols. 1-4, reproduced in Washington State Constitutional Convention 1889: Contemporary Newspaper Articles (William S. Hein & Co., 1999) ................................ 10
Tacoma Morning Globe, July 19, p. I, cols. 1-3, reproduced in Washington State Constitutional Convention 1889: Contemporary Newspaper Articles (William S. Hein & Co., 1999) ................................. 10
ix
Tacoma Morning Globe, July 25, P. 1, cols. 1-5, reproduced in Washington State Constitutional Convention 1889: Contemporary Newspaper Articles at 5-52 to 5-55 (William S. Hein & Co., 1999) ............. 11
Thomas Cooley, A Treatise on the Constitutional Limitation Which Rest Upon the Legislative Power of the States of the American Union (5th ed. 1883) ............ 9, 31, 32
X
I. INTRODUCTION
This appeal arises from a summary judgment order that was granted
to the Judges in their mandamus action against Clerk Killian. Clerk Killian's
opposition to the Judges' summary judgment motion properly relied upon the
existence of contested facts regarding the manner in which Local General
Rule (LGR) 3 was adopted, the factual basis for the rule, and the costs of
complying with the rule. See CP 289-305. The trial court's ruling on
summary judgment did not address any of these issues. See CP 232-35.
The Judges concede that they adopted LGR 3 to control the discretion
of a single, separately elected, constitutional officer: Franklin County Clerk
Killian. See CP 169 ("LGR 3 was a specific rule for a specific Superior
Court Clerk, adopted for the specific reason that Mr. Killian would not abide
the Court controlling its records by accepting the direction of the Court as to
how that would be done."). It is questionable whether judges can properly
adopt court rules to control the actions of others that they disagree with,
rather than submitting the disagreement to a neutral and disinterested judicial
officer. SeegenerallyHurtadov. California, l IOU.S. 516,536, 4 S. Ct. 111,
28 L. Ed. 232 (1884) (while each state "prescribes its own mode of judicial
proceeding," due process forbids states from adopting "special rules for a
particular person or a particular case;" rather they must regulate rights and
remedies in a "general way," conducive to the "public good," ensuring space
for courts to "hear" before "condemning"). It is extremely troubling that the
judges sought to enforce such a special rule against a person who was not
provided with prior notice or an opportunity to be heard regarding its
adoption. See Matter of Deming, 108 Wn.2d 82, 96-97, 736 P.2d 639
1
(1987) (procedural due process requires that a party whose rights are to be
affected is entitled to be heard).
Clerk Killian's due process rights have been violated to the extent
Judge Sparks accepted the Judges' claim that the "findings" in their
resolution, most of which are more properly labeled "conclusions oflaw,"
should be treated as verities in their mandamus action. See, e.g., CP 270
These findings cannot be used against Clerk Killian in this action. See, e.g.,
1 Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest
Upon the Legislative Power of the States of the American Union, at 194 (8th
ed. 1927) (a recital of facts in the preamble of a statute cannot be used as
evidence against the parties in a lawsuit).
Superior courts have a constitutional right to enact uniform rules of
practice to govern their proceedings. See Const. art. VI, sec. 24. Accord
RCW 2.08.230. Local judges are authorized to enact local rules. See GR 7.
Local rules must be consistent with rules adopted by the supreme
court. State v. Chavez, 111 Wn.2d 548, 554, 761 P.2d 607 (1988); RCW
2.04.210; GR 7(b); CR 83. Local rules must also be consistent with statutes.
Harbor Enters., Inc. v. Gudjonsson, 116 Wn.2d 283, 293, 803 P.2d 798
(1991). LGR 3 conflicts with both statutes and court rules. Accordingly the
writ of mandamus that compels Clerk Killian to comply with LGR 3 must be
vacated.
Local rules must also comply with the Washington constitution. See,
e.g., Auburn v. Brooke, 119 Wn.2d 623, 632-34, 836 P.2d 212 (1992) (court
rules cannot contravene the constitution nor derogate the constitutional rights
of any person). A court rule may violate the constitution in a number of
2
ways. First, the rule might violate the authority of executive branch officers
by usurping their authority. Second, the rule might violate the authority of
the legislative branch by adding staff or mandating additional services for
which no appropriation has been made. LGR 3 suffers from both infirmities,
necessitating the vacation of the superior court's writ of mandamus.
While the constitutional issues presented in this appeal are intriguing,
this Court may reverse the writ of mandamus and dismiss this appeal solely
upon non-constitutional grounds. See sections V. A. 1. and V. C. infra. This
Court ''will avoid deciding constitutional questions where a case may be
fairly resolved on other grounds." Cmty. Telecable of Seattle, Inc. v. City of
Seattle, Dep't of Exec. Admin., 164 Wn.2d 35, 41, 186 P.3d 1032 (2008).
II. ASSIGNMENTS OF ERROR
1. The trial court erred by entering the Writ of Mandamus, CP 239.
2. The trial court erred by entering the Order Granting Summary
Judgment, CP 236.
3. The trial court erred by entering the Order Denying Defendants'
Motion for Reconsideration of Order Granting Summary Judgment, CP 287.
III, STATEMENTOFISSUES
The Washington Constitution provides for the direct election of
executive branch county clerks. See Const. art. XI, sec. 5. The duties of
county clerks are established by the legislature. Id. The legislature has made
county clerks the guardian of superior court records. The legislature has
vested the county clerk with the power to destroy all paper records and
documents in any superior court action upon producing an electronic
reproduction of the record or document. See RCW 36.23.065. The
3
legislature does not require the county clerk to obtain permission from the
courts or any other official before replacing paper records with electronic
records. Id.
As a general rule, the duties assigned to a constitutionally created
office may not be transferred to or performed by another person or officer.
See generally State ex rel. Banks v. Drummond, 187 Wn.2d 157, 179-180,
385 P.3d 769 (2016). This principle is incorporated into GR 29(f) which
prohibits a presiding judge from exercising general administrative
supervision over "those duties assigned to clerks of the superior court
pursuant to law."
1. Do superior court judges exceed their authority by enacting a
local rule that conflicts with both statutes and the rules of this
Court?
2. Do superior court judges unconstitutionally diminish the
office of county clerk through the adoption of a local rule that
strips the clerk of his authority to replace paper records with
electronic reproductions?
The county legislative authority is responsible for determining how
taxpayer funds will be allocated. One of the items the legislative authority
must provide for is the maintenance of superior court records by the county
clerk. RCW 36.23.030. The county legislative authority has provided the
Franklin County Clerk with a sufficient appropriation to maintain electronic
records of superior court proceedings. Maintenance of a duplicate set of
paper records, which is not statutorily mandated, would require additional
funds.
4
3. Must judges establish through clear, cogent, and convincing
evidence that the superior court cannot fulfill its duties
without duplicate paper files before compelling the county
clerk to comply with a local rule for which no appropriation
has been made?
A writ of mandamus is an appropriate means of compelling
performance of a clear legal duty when the applicant does not have a plain,
speedy, and adequate remedy. A writ of mandamus, however, may not be
used to compel the performance of acts or duties that call for the exercise of
discretion on the part of public officers. A writ of mandamus will also not
issue to compel an officer to perform a non-constitutionally mandated act
when the officer cannot comply due to a lack of budget.
The legislature has vested the decision of what format court records
will be maintained in the county clerk. See RCW 36.23.065. The clerk's
exercise of discretion is influenced by the funds appropriated by the county
legislative authority. Local General Rule 3 usurps the Franklin County
Clerk's discretion to determine the format in which to maintain court records
by ordering the clerk to "keep and maintain paper files for all cases and file
types ... except as may be authorized in writing by the Court." LGR 3(a). This
authorization will not be tendered until the clerk "shall work diligently,
collaboratively and harmoniously with the Court to satisfy all of the
conditions precedent to 'paperless' court" while "conform[ing] to the
direction of the Court." LGR 3(c).
The Washington Constitution does not require the maintenance of
duplicate court records. Clerk Killian's budget, as established by the county
5
legislative authority, does not include funds to maintain both paper and
electronic court records.
4. Must the writ of mandamus, which strips the county clerk of
discretion and compels him to maintain paper records despite
the absence of an appropriation to do so, be vacated?
IV. STATEMENT OF CASE
A. Historical Background
Problems created by the failure to maintain accurate court records
were recognized as far back as the thirteenth century. King Edward, upset by
the unwarrantable practices of some judges who made false entries and
erasures to cover their own misconduct, directed "that a record surreptitiously
or erroneously made up, to stifle or pervert the truth, should not be a sanction
for error; and that a record, originally made up according to the truth of the
case, should not afterwards by any private erasure or amendment be altered
to any sinister purpose." Sir William Blackstone, Commentaries on the
Laws of England, Book 3, Chapter 25 Of Proceedings, in the Nature of
Appeals (1765-1769) (Longang Institute Vers. 2005).1 Regrettably, this
injunction led to some injustices. In the wake of prosecutions for corruption
and perversion of judgments, judges became unwilling to correct even minor
scrivener errors. Id.
American jurisdictions sought to avoid England's unhappy
experience, In California, the founding fathers provided for a county clerk
who was selected by the voters, rather than appointed by the judges to serve
1The Longang Institute's version of Blackstone may be found at https://lonang.com/library/reference/blackstone-commentaries-law-england/bla-325/ (last visited Apr. 11, 2019).
6
as the custodian of the court records. Cal. Const. art. VI, sec. 7 (1849) ("The
Legislature shall provide for the election, by the people, of . . . County
Clerks ... and shall fix by law their duties and compensation. County Clerks
shall be, ex officio, clerks of the District Courts in and for their respective
counties."). The legislature promptly established the duties of the clerk. The
legislature ordered the clerks to "take charge of and safely keep or dispose of
according to law all books, papers, and records, which may be filed or
deposited in his office," Cal. Stats. 1850, ch. 110, § 7, p. 762, and to maintain
various indexes of all suits, a docket for each case, and various other records.
Id.,§ 8, p. 262; Cal. Stats. 1851, ch. 1, § 128, p. 29; Cal. Stats. 1863, ch. 200,
§ 1, p. 260.
The clerk was subject to the direction of the court with respect to the
entry of judgment and which documents should be accepted for filing. In
filing the documents and entering judgments, the clerk acted in a ministerial
capacity only. See Crane v. Hirsh/elder, 17 Cal. 582, 585 (1861). But, once
a document was placed into the clerk's custody, it could only be altered
through the entry of subsequent orders obtained through regular proceedings
before the court. See Houston v. Williams, 13 Cal. 24, 27 (1859). It was a
"great abuse ofits powers" for a court to "take, directly or indirectly, from the
Clerk, the perquisites of his office for copies of opinions, and papers on file,
nor authorize the destruction or mutilation of any of the records." Id. at 28.
The clerk's role as a bulwark against corruption proved so successful
that the position was retained in California's second constitution. See Cal.
Const. art. VI, sec. 14 (1879) ("The County Clerks shall be ex officio Clerks
of the Courts of record in and for their respective counties, or cities and
7
counties.); Cal. Const. art. XI, sec. 5 (1879) ("The Legislature, by general
and uniform laws, shall provide for the election or appointment, in the several
counties, of ... County Clerks ... , and shall prescribe their duties, and fix their
terms of office.").2 This iteration strengthened the independence of the
clerk's office by moving its placement from article VI, the judiciary article,
to article XI, the county government article. Id. When the 1879
constitution was adopted, the duties of the county clerk were located in
sections of the 1872 Political Code, the Civil Code and the Penal Code.
These provisions continued the clerk's duty to enter orders, judgments and
decrees, keep dockets, and index all cases. See, e.g., Cal. Political Code§§
4204-05 (1872); Penal Code§§ 1047, 1207 (1872).
Washington was still a territory when California adopted its second
constitution. Its judicial needs were met by three territorial judges, each of
whom was responsible for conducting trials in one of the three judicial
districts. Washington Territory Organic Act, section 9; Laws of1854, p. 448-
49. The judges were appointed by the president and confirmed by the Senate,
with virtually no local input. Charles H. Sheldon, A Century of Judging: A
Political History of the Washington Supreme Court at 15, 17 (1988). The
judges heard cases during two sessions a year. Id .. They were assisted by
court clerks whom they appointed and whose terms of service rested solely
in the hands of the judges. See, e.g., Code of 1881 § 2123; Laws of 1854, pg.
366, sec. 4. Once a year the three territorial judges met in Olympia to sit as
the Supreme Court to hear appeals from their own decisions as district
2A copy of the 1879 constitution prior to any amendments may be found at https://www.cpp.edu/~jlkorey/calcon1879.pdf (last visited Apr. 11, 2019).
8
judges. A Century of Judging, at 15; Code of 1881 § 2113.
There was significant dissatisfaction with the territorial courts over
a growing backlog of cases, and absenteeism of the territorial judges. A
Century of Judging at 17. Residents were also resentful of how the judges
were selected. Id. It was widely believed that statehood would correct this
and other real and perceived faults associated with the territorial courts. Id.
The delegates who met for Washington's 1889 Constitutional
Convention were selected by a populace which had a general distrust of
representative government and a strong fear that government officials would
be corrupted through bribes and other practices. Robert Utter and Hugh D.
Spitzer, The Washington State Constitution: A Reference Guide at 11 (2002).
The delegates began their work with copies of the Oregon, California,
Wisconsin, Missouri, Colorado, and Indiana constitutions and a draft of a
proposed constitution which had been prepared by W. Lair Hill. See Charles
M. Gates, Foreword to The Journal of the Washington State Constitutional
Convention 1889, at v (Beverly Paulik Rosenow ed., 1962); A Century of
Judging at 20-21.
These delegates also had available to them the leading treatise of the
day, Thomas Cooley, A Treatise on the Constitutional Limitation Which Rest
Upon the Legislative Power of the States of the American Union (5th ed.
1883) (hereinafter "Constitutional Limitations (5th ed.)"),3 and the
'Decisions of the Territorial Supreme Court repeatedly cited this treatise, See, e.g., Harland v. Territory, 3 Wash. Terr. 131, 145-146, 13 P. 453 (1887) (Associate Justice Turner, who later served as a delegate to the Constitutional Convention, discussing Cooley's treatise); Bloomer v. Todd, 3 Wash. Terr. 599, 618, 19 P. 135 (1888) (citing to Cooley's treatise); Maynard v. Hill, 2 Wash. Terr. 321,326, 5 P. 717 (1884) (Associate Justice Hoyt, who later served as president of the Constitutional Convention, citing to Cooley's treatise); Maynard v. Valentine, 2 Wash. Terr. 3, 9, 3 P. 195 (1880) ("Especially valuable we have found the observations of ... and those of Judge Cooley, in his work on Constitutional
9
interpretive decisions of the courts whose constitutions served as the model
for Washington's constitution.
Article IV of the 1889 Washington Constitution was based in large
part on various provisions of the 1879 California Constitution. Compare Cal.
Const. art. VI (1879), with Wash. Const. art. IV. Throughout the debates on
the judiciary article, delegates repeatedly expressed concern that the
provisions adopted should be robust enough to protect against corruption,
political pandering, and domination by one person. See, e.g., Seattle Times,
July 19, 1989, p.l, cols. 2-6, reproduced in Washington State Constitutional
Convention 1889: Contemporary Newspaper Articles at 2-39 to 2-44
(William S. Hein & Co., 1999); Tacoma Morning Globe, July 19, p. 1, cols.
1-3, reproduced in Contemporary Newspaper Articles at 5-38 to 5-41. These
concerns were addressed by increasing the number of supreme court justices
from three to five, prohibitingjudges from instructingjuries on the facts, and
adjusting the terms of offices. See Beverly Rosenow, The Journal of the
Washington State Constitutional Convention 1889, at 593-629 (1962) .
The delegates also largely followed California's lead with respect to
court clerks. See generally Journal of the Constitutional Convention at 629
n. 58 and 718 n. 10. Judge Henry, who believed that a confidential and close
working relationship must exist between a judge and his clerk, made an
unsuccessful motion to allow judges to appoint all clerks. See Journal of the
Constitutional Convention, at 625; Tacoma Daily Ledger, July 20, 1889, p.8,
cols. 1-4, reproduced in Contemporary Newspaper Articles at 4-39 to 4-40.
The Constitution as ultimately adopted authorizes the legislature to provide
Limitations").
10
for the election of the clerk at the supreme court at any time. See Const. art.
IV, sec. 22 ("The judges of the supreme court shall appoint a clerk of that
court who shall be removable at their pleasure, but the legislature may
provide for the election of the clerk of the supreme court, and prescribe the
term of his office.").
The delegates created the office of county clerk in article XI, section
5, 4 with the understanding that the county clerk's duties were to be similar to
those of the California office. See Tacoma Morning Globe, July 25, P. 1,
cols. 1-5, reproduced in Contemporary Newspaper Articles at 5-52 to 5-55.
The holder of this office, who could only be selected by election, was "by
virtue of his office, clerk of the superior court." Const. art. IV, sec. 26. The
duties of the clerks were to be "prescribe[d] by the Legislature." Const. art.
XI, sec. 5.
The duties prescribed by the legislature shortly after the constitution
was ratified are largely the same as today. While acting as superior court
clerk, the county clerk was not assigned any judicial duties and any attempts
to perform duties that were assigned to the courts were swiftly prohibited.
See, e.g., Denny v. Holloway, 17 Wash. 487, 49 P. 1073 (1897) (clerk
prohibited from collecting a fee for examination of a guardian's report and
account as this was a duty assigned by statute to the judge of the superior
court). His ministerial duties included the keeping of the seal of the court,
"These provisions apply to Franklin County as it has not adopted a home rule charter, Only seven Washington counties have successfully adopted home rule charters- King ( 1969), Clallam (1977), Whatcom (1979), Snohomish (1980), Pierce (1981), San Juan (2006), and Clark (2015). Municipal Research Services Center, County Forms of Government (Feb. 14, 2019) (available at http:/ /mrsc.org/Home/Explore-Topics/Governance/F orms-of-Governrnent-and-Organizati on/County-Forrns-of-Governrnent.aspx (last visited Feb. 25, 2019).
11
keeping the minutes, records, books and papers appertaining to the court,
filing all papers delivered to him for that purpose, attending court,
administering oaths, and receiving verdicts. Laws of 1891, ch. 57, sec. 3.
Accord RCW 2.32.050. While performing these ministerial duties the clerk
was "to conform to the direction of the court." Laws of 1891, ch. 57, sec.
3(9). Accord RCW 2.32.050(9).
The duties related to the county clerk's role as the guardian of the
public trust and confidence were scattered throughout the early codes. Judges
lacked the ability to interfere with clerk's duties unrelated to a specific
proceeding. See, e.g. State ex rel. Gordon v. Superior Court of Jefferson
County, 3 Wash. 702, 704, 29 P. 204 (1892) (absent a proceeding to resolve
conflicting claims relating to money in the clerk's custody "neither the court
nor the judge can interfere with the ministerial duty of the clerk").
The county clerk's role as custodian of the records was continued into
statehood.' See Code of 1881 § 2181 (now codified at RCW 36.23.040).
Consistent with this position, the legislature rendered admissible as evidence
only those superior court records that had been certified by the clerk. See
Laws of 1891 ch. 57, sec. 3(7) (clerk responsible for authenticating the
records, files or proceedings of the court); Code of 1881 § 430 (records and
proceedings of a court admissible in cases when duly certified by the
attestation of the clerk); Code of 1881 § 2356 (court records certified by the
clerk and sent via electronic transmission admissible as evidence).
5 All laws in force in Washington Territory which were not repugnant to the constitution, remained in force post ratification until they expired "by their own limitation, or are altered or repealed by the legislature." Const. art. XXVII, sec. 2.
12
The legislature required the county clerk to maintain a variety of
records that served as checks against the evils first addressed by King
Edward. These records included a record of all appearances, the time of
filing of all pleadings in any cause, a docket listing all pending causes of
action with their titles, the names of the attorneys, and the nature of the
proceedings, the names of witnesses and jurors with information necessary
to make out a complete cost bill, a record of the daily proceedings of the
court, an execution docket, a record of all orders, judgments and decrees
entered in probate matters and a number of other records. See generally Code
ofl881 §§ 305,307,309, 2109; Rem. Rev. Stat.§§ 75, 1427, 1442; Laws of
1917, ch. 156, sec. 2; Laws of 1923, ch. 130, sec. 1.6
The legislature did not specify whether the records would be
handwritten or typed, whether the books be bound in leather or cloth, whether
pleadings be kept in files sorted alphabetically by title or assigned a number
based upon the date of filing, leaving these decisions and a myriad of other
decisions to the clerk's discretion. The exercise of discretion was channeled,
to some extent, by the budget allocated for this purpose. See Code of 1881
§ 2179 (records kept at the county expense).
Judges lost control over the entries in these records upon the
conclusion of the session in which the verdicts, orders, judgments, and
decisions were entered. Code of 1881 § 2179 (now codified at RCW
36.23.030(4)). Once the court session ended, a judge could only make
changes through the entry of a new order.
6These statutes have now largely been collected into RCW 36.23.030, with some located in elsewhere in the revised code of Washington. See, e.g., RCW 2.40.030, 4.64.030-.050.
13
By 1957, the legislature realized that the number of paper records
maintained by county government was exceeding the capacity of the various
courthouses. In response, the legislature authorized the destruction of non
court public records pursuant to a schedule adopted by a records committee
and to allow for paper records to be reproduced on microfilm or another
medium. See Laws of 1957, ch. 246 (now codified in Chapter 40.14 RCW).
Court records, however, were not subject to the records committee. See Laws
of 1957, ch. 246, sec. 8 (now codified as RCW 40.14.080).
County clerks, rather than the record committee, decide when to
destroy documents, books, papers, deposition, and transcripts from any action
or proceeding in the superior court. See Laws of 1957, ch. 201. Clerks were
authorized "[ n ]otwithstanding any other law relating to the destruction of
court records" to proceed with destruction after ten years elapsed since the
filing of the proceeding in a closed matter after preparing a photostatic or
similar reproduction. Laws of 1957, ch. 201, sec. 1. Copies of the
reproductions, upon certification by the county clerk, were to have the full
force and effect of the originals. Laws of 1957, ch. 201, sec. 2. With respect
to exhibits which become the property of the courts upon admission, the clerk
could only destroy or otherwise dispose of the item, upon issuance of a
superior court order. Laws of 1957, ch. 201, sec. 3; Laws of 1947, ch. 277,
sec. 1.
In subsequent years, the length of time the clerk was required to
maintain records of cases steadily decreased. See Laws of 1971, ch. 29, sec.
l(l)(seven years); Laws of 1973, ch. 14, sec. (l)(l)(six years). In 1981, the
legislature eliminated the waiting period in its entirety, provided the clerk
14
produced a photographic, photostatic, or similar reproduction. See Laws of
1981, ch. 277, sec. 10. The clerk's authority to replace paper copies with
other mediums existed "[n]otwithstanding any other law relating to the
destruction of court records," Laws of 1981, ch. 277, sec. 10, including court
rules or statutes relating to the filing of papers and the preferences of judges.
See Laws of 1981, ch. 277, sec. 1(4) (adding "as directed by court rule or
statute" to RCW 2.32.050( 4) and retaining "conform to the direction of the
court" in RCW 2.32.050(9)). Regardless of the clerk's choice of format, he
was required to provide public notice of the procedures by which the public
could inspect the court records. Laws of 1981, ch. 277, sec. 1(10).
In 1989 the legislature added "electronic" to the authorized
reproductions the county clerk could maintain in lieu of paper records. Laws
of 1989, ch. 226, sec. 1. The law authorized the clerk to destroy the original
documents immediately upon confirming that the electronic reproduction was
successfully made. Laws of 1989, ch. 226, sec. 1 (codified at RCW
36.23.065), The practice of discarding paper records immediately after
making an authorized reproduction is endorsed by the state archivist. Office
of the Secretary of State, Washington State Archives, County Clerks and
Superior Court Records Retention Schedule Version 7.0 at 1, 17 (June 26,
2014).7
In 2014, 25 years after the legislature authorized the county clerks to
replace all paper records with electronic copies, the Administrative Office of
the Courts (AOC) developed a web-based electronic court records
7The retention schedule is available at https://www.sos.wa.gov/ _ assets/archives/recordsmanagement/ county%20clerks%20and% 20superior%20court%20records%20rs%20ver%207.0.pdf (last visited Apr. 10, 2019).
15
management system for the superior courts named "Odyssey." CP 26 ,r4; 118
,r 12. The goal of Odyssey was to establish and maintain a fully "paperless"
system for the storage and retrieval of filed court documents in the superior
courts of Washington. CP 26 ,r4, 118 ,r 12. Each county was given the
option of utilizing the Odyssey system or developing its own case
management system that could transfer date in real time to AOC. CP 118-19
,r 12. Currently, 37 counties use the Odyssey system. CP 119 ,r 15.
Odyssey consists of two parts. The Superior Court Case Management
System (CMS) component "is best described as the 'front end'/Clerk's
Office case management system which is accessible to the public; via the
Odyssey Portal." CP 119 ,r 16. The Document Management System (DMS)
enables the clerk to create work flows8 and work queues. CP 119 ,r 20.
DMS provides the legal community, the public, and judges with online access
to public documents. CP 119-120 ,r 19. A clerk may use both DMS and
CMS or only CMS. CP 119-20 ,r,r 19-20.
Odyssey was implemented in 3 7 counties over a multi-year period.
See CP 26 ,r 4. When Odyssey was installed in some counties, the county
clerks had already established paperless offices. See CP 76. A clerk
possesses considerable discretion with respect to whether, when and which
components of Odyssey he may use. See In re Recall of Riddle, 189 Wn.2d
565, 576, 403 P .3d 849 (2017) ("becoming an early adopter of Odyssey was
an appropriate exercise of discretion" by the county clerk).
8In some documents "work flow" appears as a two word phrase and in others as a compound word. Compare Judge Spanner's Declaration in Support of Complaint for Writ of Mandamus, CP 271]6 ("management ofworkflow processes"), with Judicial Resolution No. 18-0001, CP 291]4 ("implementation of work flow and work queue"). Except when quoting from a document that uses the compound word, this brief will use the phrase "work flow."
16
B. Franklin County
Michael Killian first assumed the office of Franklin County Clerk in
January of 2001, following a vote of the citizenry. CP 117 ,i2. Clerk Killian,
who has been repeatedly reelected, is responsible for filing all papers
delivered to him for that purpose in any action or proceeding in the superior
court. CP 117 iJ4. Upon receipt, Clerk Killian becomes the custodian of the
records, maintaining them as directed by law throughout his term of office,
before delivering them to his successor. Id. See also RCW 36.23.040 ("The
clerk shall be responsible for the safe custody and delivery to his or her
successor of all books and papers belonging to his or her office.").
In addition to maintaining court records, Clerk Killian has numerous
other duties. See generally CP 244 ,i 18. A recurring duty is the preparation
of an annual budget. CP 117 ,i 5. The budget request includes supplies and
personnel costs. See CP 117 iMJ 5-8, 177-190. Ultimately, the Franklin
County Board of County Commissioners (BOCC) appropriates funds for the
operation of the clerk's office. See generally CP 247 ,i 21; RCW 36.40.080.
While Clerk Killian may request a supplemental appropriation, there is no
assurance that the BOCC will provide the funds. CP 247 ,i 22. If Clerk
Killian exceeds his budget, he must pay the overages from his own pocket.
See RCW 36.40.130.
Franklin County was an "early adopter" of the Odyssey system. With
the agreement of the BOCC, the members of the Benton and Franklin County
Superior Court ( collectively "Judges"), and Clerk Killian, Franklin County
installed both the DMS and CMS components of Odyssey in November of
2015. CP26iJ4,CP 119iJl7,CP 122iJ36,CP 140-42, 144. From the start,
17
Clerk Killian indicated that his office would transition to a "paperless" file
system by January I, 2018. CP 121 ,r 27.9 By "paperless," Clerk Killian
meant that his office would only maintain electronic copies of court records.
When Franklin County went "live" with Odyssey each of the judicial
officers received laptops, tablets, or other electronics to enable them to access
the court files from anywhere in the world, 24 hours a day. CP 117-18 ,r 7,
120 ,r,r 23-24. Prior to the adoption of Odyssey, the Judges' access to the
paper files was limited by the clerk's office hours. CP 120 ,r 23. This
electronic access has proven to be so efficient and comprehensive that within
weeks of going "live," paper files were no longer pulled for court dockets.
CP 120 ,r 21.
The general public can obtain case information from a kiosk located
near the clerk's office. Employees of the clerk's office are available, upon
request, to assist users of the kiosk. These employees provide copies from the
electronic records for the public in the same manner as from the paper files.
CP 121 ,r 26.
Over 500 Enhanced Odyssey Portal users enjoy direct access to
Franklin County's case information which, in some cases, allows them to
view document images from any location in the world at any time of day. CP
120-21 ,r 25. The prosecuting attorney's office, law enforcement agencies,
the local attorney general's office, the Judges, other county judicial officers,
and court administration enjoy this enhanced access at no charge. Id.
9 Judge Spanner disagrees with this assertion, claiming that Clerk Killian did not notify the Judges until December 18, 2017, of his intention to go paperless. See, e.g. CP 27 iJ 6. Because this is an appeal from an order granting the Judges' motion for summary judgment, this Court must consider all facts and make all reasonable factual inferences in the light most favorable to Clerk Killian. See, e.g., Harper v. Department of Corrections, 192 Wn.2d 328, 338 n. 4,429 P.3d 1071 (2018).
18
In 2017 the Franklin and Benton County Superior Court Judges
( collectively "Judges") assigned Judge Spanner "to work with" Clerk Killian
to develop unspecified "workflow processes." CP 27 '1[6. The Judges'
initiated "project" was delayed for unspecified reasons and in late October the
Judges proposed that the work flows and Clerk Killian's "paperless concept"
be addressed in January of 2018. Id. Clerk Killian indicated a willingness
to address whatever concerns the Judges might have with paperless files, but
he declined to maintain paper files beyond December 31, 2017. Id ..
Clerk Killian's refusal to maintain paper files in addition to electronic
records beyond December 31, 2017, was based upon a number of
considerations. First, allowing Clerk Killian's staff to focus on uploading
pleadings and records onto the electronic system has cut the time in half
between receipt of documents and the public's access to the documents. CP
118 '1[ 10, CP 244 '1[ 17. Second, the Judges and court staff rarely request
paper files or printed copies of any documents. See CP 121 'I[ 29, 243 '1[ 9
(between January 1, 2018 and November 21, 2018 only eight requests were
received for paper documents or files). Third, since Odyssey was first
implemented in November of 2015, no judicial officer notified Clerk Killian
of any access problems or any concerns related to Odyssey. CP 121 'l['I[ 29
and 31,247 'I[ 24.
Probably the most important consideration is a lack of funding to
maintain both electronic and paper records. Since Odyssey was installed,
Clerk Killian's budget steadily decreased from a high in 2017. Clerk
Killian's personal services salaries, wages, and overtime decreased in 2018
by $26,517 from 2017. Compare CP 181-82 with CP 183-84. This decrease
19
is the equivalent of a half-time filing clerk position. See CP 244 'I] 16. While
the 2018 budget for folders remained the same as in 2017, the amount is
inadequate for the creation and maintenance of new paper files as Clerk
Killian's office exhausted its supplyofrecyclable folders. CP 117-18 ,i,i 5-8,
242 'I] 2.
Maintaining paper records in addition to electronic records would
require an increase to his budget line for salaries and wages of$5,600.00 per
month and an increase of staff to enable his employees to spend the
approximately 70 hours per week creating and maintaining paper files. CP
118 ,i,i 8-9, 243-44 ,i,i 7-8 and 16. Clerk Killian cannot merely reassign
current staff to perform these additional duties as the number of proceedings
his staff must cover has continuously increased and other time sensitive tasks
must be performed expeditiously. CP 243-247 '1],i 3-5, 18.
On January 5, 2018, Judge Spanner, the superior court administrator,
Pat Austin, Clerk Killian, and Chief Deputy Clerk Ruby Ochoa met to
discuss the work flow process. CP 122 ,i 32. Rather than identify what work
flows or work queues Judge Spanner believed were necessary for the Judges
to be able to properly and adequately fulfill their duties, Judge Spanner
merely asked Clerk Killian ifhe would comply with the Judges' directive to
maintain a paper file. Id. When Clerk Killian indicated that the electronic
documents in Odyssey were the official court record, Judge Spanner slammed
his laptop shut and stormed out of the room with the court administrator in
his wake. Id. At no time since this aborted meeting have any of the Judges
advised Clerk Killian of any impediments to the performance of their duties
that paper files would resolve. CP 122 ,i 33. At no time since this aborted
20
meeting have any of the Judges identified exactly what work flows or work
queues are needed to allow them to perform their duties.
Eleven days after the failed meeting, the Judges adopted Judicial
Resolution No. 18-001. This resolution contains a number of findings. See
CP 29-30. The resolution finds that "the Court requires implementation of
work flow and work queue functionality of the case management system"
before paper files may be abandoned. CP 29 ,r 4. The resolution, however,
does not identify any impediments to the performance of judicial duties
arising from the absence of paper files. See CP 29-30. The Judges adopted
LGR 3 solely because they "believed that dual files were necessary, at least
until [ they] could assure that work flows and work queues were developed to
meet the needs of stakeholders." CP 165-66 ,r 5.
The resolution was accompanied by an order adopting an emergency
and permanent rule, CP 32. The new rule, LGR 3, stated that:
(a) The clerks of Benton and Franklin Counties shall keep and maintain paper files for all cases and file types, by forthwith filing all pleadings and papers in paper files, except as may be otherwise authorized in writing by the Court.
(b) The clerks of Benton and Franklin Counties shall make up-to-date paper files for all cases and case types available to the Court, as directed by its judicial officers.
( c) While paperless courts are preferable, they should only be implemented after careful consideration of the impacts upon the Court, the legal community and the public, and only after case management systems have been configured so all of their capabilities are realized. Accordingly, neither clerk shall attempt or purport to operate with "paperless" processes unless and until the same has been approved in writing by the court. Permission will not be granted unless the Court is satisfied that appropriate workflows and work queues have been implemented, that equipment and processes have been acquired and developed to facilitate electronic signatures, and that the paperless processes do not adversely affect the Court's ability to conduct
21
CP33.
court proceedings and other court functions. As directed by the Court, the Clerks shall work diligently, collaboratively and harmoniously with the Court to satisfy all of the conditions precedent to "paperless" court, as set forth above. In so doing, the clerks shall conform to the direction of the Court.
( d) Pursuant to GR 7( e) this rule shall become effective immediately upon filing the same with the Washington Administrative Office of the Courts.
Although LOR 3 rule indicates it is applicable to both the Benton
County Clerk10 and the Franklin County Clerk,
LOR 3 was a specific rule for a specific Superior Court Clerk, adopted for the specific reason that Mr. Killian would not abide the Court controlling its records by accepting the direction of the Court as to how that would be done.
CP 169.
Clerk Killian requested an opportunity to respond to LOR 3, which
was adopted without prior notice to him or an opportunity to be heard. On
February 8, 2018, Clerk Killian again declined to maintain paper records in
addition to the electronic records. CP 27-28 ,i 6. He declined, in part,
because compliance with LOR 3 would require funding beyond his current
budget and an increase in staff. CP 118 ,i 8,244 ,iii 14 and 16.
The Judges filed a complaint for writ of mandamus to compel Clerk
Killian to comply with LOR 3 on March 21, 2018. CP 3. 11 The action was
"The Benton County Clerk lacks the ability to implement work flows and work queues as the Benton County Clerk did not adopt Odyssey DMS. CP 120 '1[20, 247 i] 24. The Judges have not taken enforcement action to compel the Benton County Clerk to develop work flows and work queues. See CP 119-20 ff 18-20, 247 i] 24.
11A First Amendment Complaint for Writ of Mandamus was later filed on March 26, 2018. CP 34. The amended complaint is identical to the original complaint except that paragraph 3,7 of the original complaint included a request "that the Court enter judgment against the defendant and award plaintiffs their costs and disbursements herein," CP 5 i]3. 7, while the amended complaint omits this request. See CP 36 i]3.7. Accord CP 39.
22
supported by a declaration from Judge Spanner, which explained that
Paper copies of case files, pleadings and other materials are needed by the Court because computerized systems for retrieval and reading of such materials have not yet evolved to the point where they are readily accessible at all places where they are needed for review by the judges and court commissioners conducting proceedings with litigants, attorneys and other members of the court. For example, settlement conferences in domestic relations cases are conducted in jury rooms. They are not scheduled to be conducted in a judge's chambers because these areas contain confidential material of others. There are no computers in the jury rooms, so it is necessary for the Judge to have a paper file there in order to review briefs, declarations and exhibits which are relevant to the issues in the settlement conference. This dispute must be resolved before procedures to address this and other challenges created by a paperless environment can be implemented.
CP 28 ,r7. Neither the complaint nor Judge Spanner's declaration identified
specific instances in which the court was unable to perform its duties due to
the absence of paper records. Neither the complaint nor Judge Spanner's
declaration defined the phrases "work flow"or "work queue" or explained
how these items impact the court's ability to perform its duties.
Shortly after the mandamus complaint was filed a member of the SC
CMS Steering Committee, Barbara Christensen, contacted Judge Spanner and
asked him to share the concerns the Judges are having with the Odyssey
program. CP 76. The request was made so that issues might be addressed
before Odyssey was expanded into 12 counties, some of which are paperless.
Id. Judge Spanner responded that he was "very satisfied with Odyssey and
its ability to perform in a paperless environment" and that he had "heard no
complaints from my bench mates." CP 78.
Judge Spanner further explained that the "the bench does not have an
Odyssey problem. But, there is a clerk problem." Id. Specifically, Judge
23
Spanner was "fiustrated,""dismayed," and "annoyed" that Clerk Killian
"refuses to fully exploit all of the labor-saving functionality of Odyssey." CP
78-79. As evidence, Judge Spanner indicated that Clerk Killian's seven work
flows compare unfavorably to the number created by Thurston County. CP
78. Judge Spanner, without quantifying the length of the alleged delay,
claimed that the absence of a "work flow transmitting the felony and
judgment sentences" to the jail resulted in "prisoners spending extra time
incarcerated." CP 78-79.
Ms. Christensen, who in addition to serving on the SC-CMS Steering
Committee was also the President of the Washington State Association of
County Clerks and the Clallam County Clerk, investigated Judge Spanner's
allegations. As to work flows, it appeared that Judge Spanner was either
using the phrase in a different manner than the Odyssey program or he was
not understanding the data. CP 82. Contrary to Judge Spanner's
representations, the Thurston County Clerk has 20 work flow queues, not 253
work flow queues. CP 82. With respect to the judgment and sentences,
Clerk Killian's office scans and e-mails the documents to the sheriff's office
the same day as entry, and the sheriff's office has not identified any issues
associated with the current procedure. CP 82-83.
On June 6, 2018, two days before Clerk Killian filed his answer to the
first amended complaint for writ of mandamus, the Judges filed a motion for
summary judgment. CP 37. The only evidence tendered in support of the
motion was Judge Spanner's prior declaration. CP 38, 46-46-54, 71. The
tendered evidence and argument established that the Judges might be
inconvenienced by the absence of paper files, but not that their ability to
24
perform their duties are imperiled by the lack of paper files. See CP 37-70,
145-222.
Clerk Killian opposed the Judges' motion for summary judgment. CP
116-144, 289-305. Clerk Killian was supported in his opposition to the
Judge's summary judgment motion by two amici curiae, the Washington
State Association of Counties ("WSAC") and the Washington State
Association of County Clerks ("Clerk's Association"). See CP 84, I 01, 103,
223.
Oral argument was heard on the Judges' summary judgment motion
on Friday, December 7, 2018. RP 1; CP 232,254. The motion was granted
on December 10, 2018, with the writ of mandamus issued the same day. CP
236, 239. The writ of mandamus makes no allowance for the lack ofBOCC
appropriated funds to pay for compliance with LGR 3. See CP 239-41.
The trial court explained its decision in a letter which claimed "that
the entire court system ( and any records kept therein) operates under one
direct chain of command, from the Supreme Court to the trial court" with the
clerks "operating under the direction and supervision of the Supreme Court."
CP 234. The trial court's letter further stated that neither Clerk Killian nor
the amici provided "any authority for the assertion that the manner in which
the Clerk holds the records is a discretionary act." CP 233 (emphasis in
original). Accordingly, the timing of when a paperless system is adopted
rests with the Judges and not with Clerk Killian. CP 235.
Clerk Killian filed a timely motion for reconsideration. CP 250. The
memorandum in support of the motion identified the statutory authority
which vested the decision of the medium in which to maintain the records in
25
the clerk. See CP258-59, citingRCW 36.23.065. Clerk Killian's submission
also explained the cost of complying with the writ of mandamus and the lack
of financial resources to pay those costs. See generally CP 242, 261-64.
Specifically, Clerk Killian's office received 85,275 documents
consistingof287,778 pages between January 1, 2018 and December 14, 2018
that would now need to be "sorted, hole punched, placed into paper files,
shelved and maintained in the Clerk's Office vault." CP 243 ,nJ 6, 11. Staff
costs for performing these tasks would require an appropriation of
approximately $12,000. CP 244 iJ 13. Performing these tasks with respect to
documents filed subsequent to December 14, 2018, would require an
additional staff person at an annual cost of$52,609.00. CP 244 ,i 16,247 iJ
20. Clerk Killian's 2019 budget, which was approved by the BOCC on
December 18, 2018, did not include an appropriation to cover the one-time
or the on-going expenses. CP 244 ,i 21. This budget renders it impossible for
Clerk Killian to comply with LGR 3 or the writ of mandamus. CP 247-48 ,nJ
25-26.
The trial court requested that the Judges respond to Clerk Killian's
motion for reconsideration. CP 267. After reviewing the response, the trial
court denied Clerk Killian's motion for reconsideration. CP 287. Clerk
Killian filed a timely appeal from the order denying his timely motion for
reconsideration, the order granting the Judges' motion for summary judgment
and the writ of mandamus. CP 306.
26
V. ARGUMENT
A. The Separately Elected County Clerk is Solely Responsible for the Maintenance of Court Records Once They are Filed.
1. Lgr 3 Conflicts with Both Statutes and Court Rules,
In RCW 36.23.065 the legislature placed the decision as to the media
in which superior court records were to be maintained solely in the hands of
the county clerk. See also RCW 36.23.040 ( clerk responsible for the custody
of the superior court records). A clerk may exercise his discretion to
maintain only electronic reproductions of superior court records without
judicial leave, as RCW 36.23.065 contains no requirement that the clerk
obtain a judicial order prior to destroying original court documents while
such a provision appears in RCW 36.23.070. See generally Millay v. Cam,
135 Wn.2d 193, 202, 955 P.2d 791 (1998) (where the legislature includes
particular language in one section of a statute but omits it in another, the
exclusion is presumed intentional).
The legislature further provided that no other law could alter the
county clerk's exercise of discretion. See RCW 36.23.065 (''Notwithstanding
any other law relating to the destruction of court records"). This language
encompasses court rules. See Guillen v. Pierce County, 144 Wn.2d 696, 729,
31 P .3d 628 (2001) (the phrase "notwithstanding any other provisions oflaw"
includes both statutes and court rules), rev 'don other grounds by Pierce
County v. Guillen, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003).
Local General Rule 3 directly conflicts with RCW 36.23.065. With
LGR 3 the Judges insert a judicial consent requirement into RCW 36.23 .065,
prohibiting Clerk Killian from destroying the paper documents until some
27
unspecified future date. But a local court rule may not be promulgated for
such a purpose. Harbor Enters., Inc., 116 Wn.2d at293 (local rules must not
conflict with a statute).
A court, whether acting in its legislative role as a rule maker or in its
adjudicative role, may not add language to a statute that the court believes the
legislature may have inadvertently omitted. See, e.g. In re Postsentence
Review of Leach, 161 Wn.2d 180, 186, 163 P.3d 782 (2007) (Washington
courts have a long history of restraint in compensating for legislative
omissions and will not read into a statute that which it may believe the
legislature has omitted, be it an intentional or inadvertent omission). For a
court to add language to a statute is a "'usurpation of!egislative power for it
results in destruction of the legislative purpose."' State v. Taylor, 97 Wn.2d
724, 728, 649 P.2d 633 (1982) (quoting 2A C. Dallas Sands, Statutes and
Statutory Construction§ 47.38, at 173 (4th ed. 1973)).
The Judges acted in excess of their authority by adopting LGR 3. The
rule is invalid. Clerk Killian cannot be compelled to comply with an invalid
court rule. The mandamus order must be vacated and the matter remanded
with directions to dismiss the Judges' action with prejudice. The necessity
for vacation of the writ of mandamus is further established by LGR 3's
conflict with rules promulgated by this Court.
1n GR 29(f) this Court expressly forbade judges from "exercising
general administrative supervision" over the "duties assigned to clerks of the
superior court pursuantto law." The commentary to the rule explains that the
limitation arises because
1n the superior courts, the clerk's office may be under the direction of a separately elected official or someone appointed
28
by the local judges or local legislative or executive authority. In those cases where the superior court is not responsible for the management of the clerk's office the presiding judge should communicate to the court clerk any concerns regarding the performance of statutory court duties by county clerk personnel.
Commentary to GR 29(t).
In the instant case, the Judges have eschewed the communication so
necessary for problem solving. The Judges have never identified with
specificity their concerns related to Odyssey, what work flows and work
queues they believe are necessary to allow them to perform their duties, or
what additional accommodations are needed to provide them with the access
they desire to the electronic court records. Instead, the Judges in LGR 3
ordered Clerk Killian to "conform to the direction of the Court," LGR 3(c),
while performing his RCW 36.23.040 and 36.23.065 statutory duties.
The path selected by the Judges in LGR 3 threatens the independence
of Clerk Killian and invades the prerogatives of his office. This Court should
invalidate LGR 3 and direct the Judges to engage Clerk Killian in dialogue
so that he may address their concerns in the collaborative manner envisioned
by the Commentary to GR 29(t) and this Court's precedent. See Zylstra v.
Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975) ("Harmonious cooperation
among the three branches is fundamental to our system of government.").
2. LGR 3 Is a Usurpation by the Judicial Branch of Duties Vested in the Executive Branch Office of the County Clerk.
The starting point of any constitutional inquiry into the duties and
powers of each office or officer must begin with article I, section I, of the
constitution. This provision announces to one and all that the people reserve
unto themselves the right to select who may exercise political power in
29
Washington:
All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
Const. art. I, sec. 1.
The final constitution constituted an express surrender of much of the
people's sovereignty to the state government. See Amalgamated Transit v.
State, 142 Wn.2d 183, 238, 11 P .3d 762 (2000). The people, however,
reserved to themselves the right to determine who could serve in the
government. By specifying in the constitution the terms of offices, providing
for the election of officers, setting the qualifications for service as an officer,
and naming the officers and offices, the delegates ensured that power could
not become concentrated in any one person or any one branch of government.
See Const. art. II, secs. 4, 5, 6 and 7; Const. art. III, secs. 1, 2, 3 and 25;
Const. art. IV, secs. 3, 5, and 17; Const. art. XI, secs. 4 and 5.
At the state government level, the Washington Constitution created
three branches of government: the judicial, the legislative, and the executive.
See, e.g., Freedom Foundation v. Gregoire, 178 Wn.2d 686,696,310 P.3d
1252 (2013). The powers of the executive branch were further subdivided
through the direct election of the attorney general, the state treasurer, the state
auditor, the secretary of state, the attorney general, the superintendent of
public instruction, and the commissioner of public lands, rather than allowing
the governor to appoint these individuals. 12 See Const. art. II, sec. 7; Const.
1'The United States Constitution grants the president the power to appoint all other officers of the United States, whose appointments are not otherwise provided for in the constitution. See U.S. Const. Art. II, sec. 2.
30
art. III, sec. 25; Const. art. IV, sec. 17.
The duties of the judicial branch were also subdivided at the superior
court level between the judges and a separately elected superior court clerk.
See Const. art. IV, secs. 5 and 26. This division of duties was adopted from
California, whose courts had determined that the framework prohibited
judges from interfering with the clerk's duties and the clerk from performing
judicial functions. See Crane v. Hirsh/elder, supra; Houston v. Williams,
supra. These pre-Washington Constitutional Convention cases were
consistent with the leading treatise of the day. See generally Constitutional
Limitations (5th ed.), at 135-36 (powers conferred by the constitution upon
any officer cannot be performed by another officer).
The framers' expectation that their chosen language would be given
the same effect in Washington as in California, was realized shortly after
statehood. See generally Denny v. Holloway, supra (clerk prohibited from
performing duties assigned by statute to the judge of the superior court);
Lewis v. Seattle, 5 Wash. 741, 750-51, 32 P. 794 (1893) (judicial
interpretation given to California constitutional provisions prior to
Washington adopting the provisions should be given force and recognized in
Washington); State ex rel. Gordon, 3 Wash. at 704 ("neither the court nor the
judge can interfere with the ministerial duty of the clerk").
While assigning the ministerial duties of the superior court to the
county clerk, the county clerk was not made a judicial branch officer. The
position of the county clerk was placed in Article XI of the Constitution. See
Const. art. XI, sec. 5 ("The legislature, by general and uniform laws, shall
provide for the election in the several counties of ... county clerks,"). By
31
naming the county clerk in article XI, section 5, the people intended that the
person elected to that office should exercise the powers and perform the
duties then recognized as appertaining to the position of county clerk. State
ex rel. Johnston v. Melton, 192 Wash. 379,388, 73 P.2d 1334 (1937). The
pre-statehood Washington statutes and the California statutes applicable to
county clerks and superior court clerks define the "core functions" of the
office of county clerk.
Once the constitution was ratified, the legislature, although directed
to "prescribe [the] duties," Const. art. XI, sec. 5, of the county clerk, lost the
power to strip the office of its core functions or to authorize anyone else to
perform those functions. Cf Drummond, 187 Wn.2d at 179-182 (a statute
that authorizes a board of county commissioners to hire outside counsel over
the objection of an able and willing prosecuting attorney would
unconstitutionally deny the electorate's right to choose who provides the
services of an elected office); State v. Rice, 174 Wn.2d 884, 905, 279 P.3d
849 (2012) ("the legislature is free to establish statutory duties that do not
interfere with core prosecutorial functions"); State ex rel. Johnston v. Melton,
supra (legislature could not authorize the prosecuting attorney to appoint an
investigator to perform the duties of the county sheriff); Constitutional
Limitations ( 5th ed.), at 136 ("That such powers as are specially conferred by
the constitution upon the governor, or upon any other specified officer, the
legislature cannot require or authorize to be performed by any other officer
or authority; and from those duties which the constitution requires of him he
cannot be excused by law.").
32
The core functions of the county clerk include safely maintaining the
records of his office. See RCW 36.23.040. In performing this core function,
the county clerk must exercise judgment regarding where to store the records,
how and when access to the records will occur, and the media in which the
records will be kept. The legislature cannot assign responsibility for making
these judgment calls to any other person.
The constitution gives judges no role in defining the duties of the
separately elected county clerk. Nonetheless, the Judges in LGR 3 placed
themselves in charge of core functions of the county clerk. The Judges'
diminishment of Clerk Killian's office is unconstitutional. Clerk Killian
cannot be compelled to comply with an unconstitutional court rule. The writ
of mandamus must be vacated.
B. Judges Cannot Compel Public Funds Through A Court Rule When the Rule is Not Constitutionally Mandated and the Judges Can Perform Their Duties Without the Rule
As a general rule, public funds may not be expended except as
authorized by law. Moore v. Snohomish County, 112 Wn.2d 915, 919-920,
774 P.2d 1218 (1989) (citing Wash. Const. art. VIII, sec. 413). At the county
level, this means that the legislative authority allocates funds to county
officers for the performance of their duties. See generally Chapter 36.40
13Const. art. VIII, sec. 4 provides:
No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law ....
The expenditure of public funds without the necessary appropriation is a felony. See Const. art. XI, sec. 14 (" using [public funds] for any purpose not authorized by law, by any officer having the possession or control thereof, shall be a felony, and shall be prosecuted and punished as prescribed by law.").
33
RCW. A county officer who exceeds this allocation is personally responsible
for any claims in excess of the budget appropriation. RCW 36.40.130.
A court, however, may exceed a county legislative authority's
allocation of funds on very rare occasions. A court has the inherent power to
dictate its own survival when insufficient funds are provided by the
legislative branch. In re Salary of Juvenile Director, 87 Wn.2d 232,245, 552
P.2d 163 (1976). The exercise of this inherent power by a superior court
requires the court to make its case to a disinterested judicial officer. See
Committee for Marion County Bar Ass 'n v. County of Marion, 123 N.E.2d
521, 524 (Ohio 1954) (because of the interest which a court would
necessarily have with respect to an action to compel funds for court services,
the remedy should be sought in another court). Accord Juvenile Director, 87
Wn.2d at 249 ( extreme care must be taken with respect to actions to compel
funding to maintain the judiciary' s image of impartiality).
1n the hearing before a disinterested judicial officer, the superior court
must establish by clear, cogent, and convincing proof that it cannot fulfill its
duties without the increased funding. Id., at 252. This demanding standard
was set in recognition that litigation based on inherent judicial power to
finance court functions ignores the political allocation of available resources
by the legislative branch and can harm the judiciary' s image of impartiality
and the public's willingness to accept the court's decisions as those of a fair
and disinterested tribunal. Id., at 248-49.
The costs associated with the county clerk's maintenance of the
superior court records are borne by the county. See RCW 36.23.030. While
the county legislative authority may choose to allocate sufficient funds to
34
maintain court records in both paper and electronic formats, there is no
requirement to do so. See RCW 36.23.065. In this case, the BOCC's
allocation of funds for Clerk Killian's office is insufficient to maintain both
paper and electronic copies of records.
The Judges, nonetheless, desired paper records. Rather than request
a supplemental appropriation for the duplicate files from the BOCC, the
Judges declared an "emergency" and adopted LGR 3. Through the court rule
process, the Judges passed upon the sufficiency of their own showing of
"need" or "necessity'' without any rebuttal from either Clerk Killian or the
BOCC.14 The findings contained in Judicial Resolution No. 18-0001, CP 29-
31, even when supplemented by the grievances identified in the Judges'
superior court pleadings, do not establish that paper records are required for
the court to perform its duties.
Most of the Judges' "evidence" regarding the need for duplicate paper
records consists of a desire for work queues, work flows, and electronic
signatures. The Judges, however, provided no information as to how the first
two relate to courtroom procedures and courts have successfully operated for
centuries with judges manually signing their names to documents with a pen.
The Judges bemoan the inconvenience of electronic records during
settlement or discovery conferences in jury rooms which lack computers.
See, e.g., CP 28 ,i 7, 166-67 ,i 4. The Judges, however, have not established
that rooms with computers are not available for these conferences or that they
14The BOCC would be a necessary party to any action in which a court or a judge seeks to exercise the judicial branch's inherent authority to appropriate money as the BOCC is responsible for adjusting the county's overall budget to ensure that the judicially appropriated funds will not cause a deficit.
35
cannot access the electronic records while in the jury room through their
county provided laptop computers or tablets. The existence of these
alternatives prevents them from meeting their burden of proof. See Juvenile
Director, 87 Wn.2d at 234,252 (there was a "fundamental failure of proofby
respondent Superior Court" in support of funds to increase the salary of the
juvenile director where qualified employees could be obtained at the lower
salary).
LGR 3 is without force or effect as it is unfunded. The mandamus
order compelling Clerk Killian to comply with LGR 3 must, therefore, be
vacated and the mandamus action be dismissed with prejudice.
C. The Writ of Mandamus Was Improperly Granted
RCW 7 .16.160 provides that a writ of mandamus may be issued "to
compel the performance of an act which the law especially enjoins as a duty
resulting from an office." Mandamus requires the satisfaction of three
elements: (1) the party subject to the writ is under a clear duty to act, (2) the
applicant has no plain, speedy, and adequate remedy in the ordinary course
oflaw, and (3) the applicant is beneficially interested. RCW 7.16.160, .170;
Eugster v. City of Spokane, 118 Wn. App. 383,402, 76 P.3d 741 (2003).
A writ of mandamus is an extraordinary remedy that is appropriate
only where the plaintiff shows there is a clear duty to act and the duty is
ministerial, not discretionary. Seattle Times Co. v. Serlw, 170 Wn.2d 581,
589,243 P .3d 919 (2010). An act is "ministerial" when the law '"prescribes
and defines the duty to be performed with such precision and certainty as to
leave nothing to the exercise of discretion or judgment."' SEIU Healthcare
775NWv. Gregoire, 168 Wn.2d 593,599,229 P.3d 774 (2010) (internal
36
quotation marks omitted) ( quoting State ex rel. Clark v. City of Seattle, 13 7
Wash. 455,461,242 P. 966 (1926)). A writ of mandamus will not issue to
compel a general course of conduct, only specific acts. Clark Cty. Sheriff v.
Dep't of Soc. & Health Senw., 95 Wn.2d 445,450,626 P.2d 6 (1981).
1. The Writ of Mandamus Improperly Compels Clerk Killian to Exercise His Discretion in a Particular Manner
A writ of mandamus will issue to compel the exercise of discretion,
but not to compel the exercise of a particular discretionary decision. Vangor
v. Munro, 115 Wn.2d 536, 798 P.2d 1151 (1990). "Once officials have
exercised their discretion, mandamus does not lie to force them to act in a
particular manner." Aripa v. Department of Social & Health Servs., 91
Wn.2d 135, 140,588 P.2d 185 (1978) (emphasis in the original), overruled
on other grounds by State v. WW J Corp., 13 8 Wn.2d 595, 602, 980 P .2d 1257
(1999).
Here, Clerk Killian had a non-discretionary duty to "file all papers
delivered to him for that puipose in any action or proceeding in the court as
directed by court rule or statute." RCW 2.32.050( 4). Clerk Killian has a
non-discretionary duty to maintain these papers in a safe manner and to
deliver them to his successor. RCW 36.23.040. Clerk Killian has discretion,
however, as to the medium in which to keep the records. See RCW
36.23.065 (records may be maintained for the use of the public a
photographic, microphotographic, electronic or similar reproduction of each
document or record). Clerk Killian has discretion regarding the maintenance
of original records, and he may destroy them immediately upon confirming
that the reproduction was successfully made. See RCW 36.23.065; County
Clerks and Superior Court Records Retention Schedule Version 7 .0 at I, 17.
37
The writ of mandamus in this case does not compel Clerk Killian to
exercise his discretion. Clerk Killian has already done so, choosing not to
maintain the paper originals in separate, constantly updated, physical files in
addition to the electronic reproductions. The writ purports to force Clerk
Killian to follow a different course. This exceeds the scope of mandamus.
See, e.g., Aripa, 91 Wn.2d at 141. As Clerk Killian's decision to abandon
duplicate paper files was not arbitrary or capricious, the writ of mandamus
must be vacated.
2. The Writ of Mandamus is Unenforceable Due to Lack of Funding
A county officer may not make expenditures in excess oflegislative
appropriations. See Const. art. VIII, sec. 415; RCW36.40.130. A county
officer must perform his or her duties to the extent possible within the
funding provided. A court will not compel a county officer to take actions for
which there is no appropriation unless the funding thereof is constitutionally
mandated. Cf Hillis v. Department of Ecology, 131 Wn.2d 373, 388-89,
932 P.2d 139 (1997) ("a statutory right can be enforced only up to the
funding provided by the Legislature" and a court will "not usually order an
agency to do something it has not been funded to do"). Courts refrain from
issuing writs of mandamus in such cases because the harm arising from not
issuing the writ "will not be nearly as great as would be the consequences of
the interference by the courts with the executive duties of the board of county
commissioners, in whom is reposed the financial management of the county's
"Const. art. VIII, sec. 4 applies to counties as well as to the state. Ashley v. Superior Court, 82 Wn,2d 188, 194, 509 P.2d 751 (1973), modified, 83 Wn.2d 630, 521 P.2d 711 (1974).
38
affairs." State ex rel. Farmer v. Austin, 186 Wash. 577, 588, 59 P.2d 379
(1936). Accord Hillis, 131 Wn.2d at 390 (it would be "even more
intolerable" for the judiciary to invade the power of the legislative branch and
order a specific appropriation to fund a duty or task every time a court
decides that the legislature did not act wisely or responsibly in its initial
allocation of funds).
The issuing of a writ of mandamus in the absence of funding is a
futile act. Courts enforce compliance with a writ through its contempt
powers. See State ex rel. Hawes v. Brewer, 39 Wash. 65, 69, 80 P.
1001(1905) ("It is the office of mandamus to direct the will, and obedience
is to be enforced by process for contempt."). Coercive contempt cannot be
imposed when an officer's violation of a writ of mandamus is not willful.
See, e.g., RCW 7.21.030(2) (remedial contempt sanctions may only be
imposed when it is within the person's power to perform the ordered act);
AGO 2001 No. 6at4 (court's power to compel a clerk to comply with a court
rule is limited where the funds necessary to comply have not been provided
by the county commissioners).
Noncompliance is not willful when the officer lacks the present power
to perform the ordered act. Where a party claims he lacks sufficient funds to
comply, and that claim is unchallenged, the court may not impose coercive
contempt sanctions. See, e.g., Smiley v. Smiley, 99 Wash. 577, 169 P. 962
(1918) (commitment to coerce compliance improper where affidavit as to
lack of ability to comply is unchallenged). Claims of inability to perform are
to be adjudicated upon the facts at the time of enforcement, not upon past
ability. See, e.g., Britannia Holdings Ltd. v. Greer, 127 Wn. App. 926, 933-
39
34, 113 P .3d 1041 (2005) ( evidence that appellant possessed sufficient funds
in 2002 and transferred the money away was insufficient to establish an
ability to comply when the contempt order was entered in 2004), review
denied, l 56 Wn.2d 1032 (2006).
Clerk Killian is fulfilling his duty to maintain the records of the
superior court through statutorily authorized electronic reproductions. The
funds provided by the BOCC to Clerk Killian are sufficient to create and
maintain these electronic reproductions Clerk Killian's evidence that an
additional $52,000 is needed yearly in order to create and maintain duplicate
paper files while performing his other statutory duties is unrebutted by
competent evidence.
The Judges have not identifLe_d_a__constitutional right to duplicate
paper files, and there is none. Their demand for duplicate paper files rests
solely upon a local court rule. Judge Spanner speculates that because Clerk
Killian was able to create and maintain duplicate files within the limits of his
pre-2018 budgets, see CP 165-66, he can continue to do so under the
diminished 2018 and 2019 budgets. Speculation is insufficient to support
enforcement of the writ of mandamus compelling Clerk Killian to comply
with LGR 3. Under these circumstances, the writ of mandamus must be
vacated.
. V. CONCLUSION
Clerk Killian respectfully requests that this Court reverse the trial
court's order granting summary judgment to the Judges. The writ of
mandamus must be vacated and this matter should be remanded to the
superior court with orders to dismiss the Judges' action with prejudice.
40
Respectfully submitted this 16th day of April, 2019.
SHAWN P. SANT
Franklin County Prosecuting Attorney
'~,~ PAMELAB.LOGINif?,= WSB~o. 18096 Special Deputy Prosecuting Attorney 206 10th Ave. SE Olympia, WA 98501 Tel: 360-753-2175 Fax: 360-753-3943 E-mail: [email protected]
41
PROOF OF SERVICE
I, Pamela B. Loginsky, declare that I have personal knowledge of the
matters set forth below and that I am competent to testify to the matters stated
herein.
On the 16th day of April 2019, pursuant to the agreement of the amici
curiae, an electronic copy the document to which this proof of service is
attached was served upon the following individuals via the CM/ECF System
and/or e-mail:
Philip Talmadge at [email protected] and at christine@tal
fitzlaw.com
Aaron Orheim at [email protected] and at christine@tal-
fitzlaw.com
Jacquelyn Aufderheide [email protected]
Lisa Nickel at [email protected]
On the 16th day of April, 2019, a copy of the document to which this
proof of service is attached was placed in the United States Mails in an
envelope, upon which first class postage was affixed, that was addressed to
W. Dale Kamerrer Attorney at Law P.O. Box 11880 Olympia, WA 98508-1880
A copy of this document was also sent on April 15, to the following e-mail
addresses via the CM/ECF System:
Dale Kamerrer at [email protected] and at [email protected]
Signed under the penalty of perjury under the laws of the state of
Washington this 16th day of April, 2019, at Olympia, Washington.
~~~ PAMELAB.WGINSKY, WSBANo.18096 Special Deputy Prosecuting Attorney
42
WASHINGTON ASSOC OF PROSECUTING ATTY
April 16, 2019 - 3:14 PM
Transmittal Information
Filed with Court: Supreme CourtAppellate Court Case Number: 96821-7Appellate Court Case Title: The Judges of Benton and Franklin Counties v. Michael Killian, et al.Superior Court Case Number: 18-2-50285-6
The following documents have been uploaded:
968217_Briefs_20190416150913SC561038_4191.pdf This File Contains: Briefs - Appellants The Original File Name was Filed Corrected Brief of Appellant.pdf
A copy of the uploaded files will be sent to:
[email protected]@[email protected]@[email protected]@[email protected]@[email protected]@co.franklin.wa.us
Comments:
This brief replaces the one filed yesterday. When I reread my brief this morning, I found a misspelled word. Thiscorrected brief has replaced the misspelled word with the correctly spelled version. A number of other minor, non-substantive, formatting issues have also been corrected.
Sender Name: Pam Loginsky - Email: [email protected] Address: 206 10TH AVE SE OLYMPIA, WA, 98501-1311 Phone: 360-753-2175
Note: The Filing Id is 20190416150913SC561038